Rollins, Inc. v. Butland

• Decision Date: 15 December 2006
• Docket Number: No. 2D05-368.,2D05-368.
• Citation: 951 So.2d 860
• Parties: ROLLINS, INC., and Orkin Exterminating Company, Inc., Appellants, v. Mark BUTLAND and Christine Butland, Kris Cornett, and Maria Garcia, on behalf of themselves and others similarly situated, Appellees.
• Court: Florida District Court of Appeals

951 So.2d 860

ROLLINS, INC., and Orkin Exterminating Company, Inc., Appellants, v. Mark BUTLAND and Christine Butland, Kris Cornett, and Maria Garcia, on behalf of themselves and others similarly situated, Appellees.

No. 2D05-368.

District Court of Appeal of Florida, Second District.

December 15, 2006.

Rehearing Denied January 2, 2007.

Theodore R. Scarborough, Michael W. Davis, Constantine L. Trela, Jr., and Robert N. Hochman of Sidley Austin Brown & Wood LLP, Chicago, Illinois; and Douglas B. Brown of Rumberger, Kirk & Caldwell, P.A., Orlando, for Appellants.

David M. Caldevilla of de la Parte & Gilbert, P.A., Tampa, and J. Daniel Clark of Clark & Martino, P.A., Tampa, for Appellees.

Mark H. Ruff of Alvarez, Sambol, Winthrop & Madson, P.A., Orlando, for Amicus Curiae Florida Pest Management Association, Inc.

WALLACE, Judge.

Mark Butland, Christine Butland, Kris Cornett, and Maria Garcia (the Appellees) filed a class action complaint in the circuit court against Rollins, Inc., and Orkin Exterminating Company, Inc. (the Appellants), for multiple claims arising from Orkin's contractual undertakings related to the control of subterranean termites. The Appellees moved for class certification. The circuit court certified a class and one subclass under Florida Rule of Civil Procedure 1.220(b)(2) and (b)(3). On this appeal, the Appellants challenge the order granting the Appellees' motion for class certification.¹ Because we conclude that the Appellees' claims did not meet the requirements for class certification under either subsection (b)(2) or subsection (b)(3) of rule 1.220, we reverse the order granting class certification.

I. THE APPELLEES' CLAIMS

Each of the Appellees entered into a "Subterranean Termite Agreement" with Orkin (the Contract). In the Contract, Orkin agrees to treat the customer's property for subterranean termites in exchange for the payment of an initial fee. Thereafter, the Contract is renewable annually upon payment of a renewal fee. The Contract provides for reinspections of the customer's property "when Orkin believes it necessary, or annually if [the customer] request[s] it." If an infestation of subterranean termites is found during the term of the Contract, Orkin undertakes to re-treat the property at no additional cost to the customer. The Contract includes various disclaimers, including a disclaimer of any obligation "to repair any damage to [the customer's] building or its contents caused by an infestation of Subterranean Termites." The Appellees each claim that they sustained extensive termite damage to their homes caused by Orkin's deficient performance of its obligations under the Contract.

The allegations of the Appellees' complaint against the Appellants are detailed and extensive. The complaint is 45 pages long and contains over 166 paragraphs. In the class certification order, the circuit court summarized the crux of the dispute as follows:

a. Orkin, through alleged deceptive and unfair business practices at the control and direction of its parent, Rollins, is alleged to have entered into Standard Termite Contracts with the [Appellees] and the Orkin Termite Class that are void ab initio because such contracts are alleged to be illegal and in violation of Florida's Pest Control Act, chapter 482, and Florida's Deceptive and Unfair Trade Practices Act, Florida Statutes, chapter 501;

b. [Through] its alleged deceptive and unfair trade practices, Orkin, at the control and direction of its parent, Rollins, is alleged to have taken money from [the Appellees] and the Orkin Termite Class, both through initial payments and annual renewals, without providing agreed upon services for inspection and treatment of subterranean termites, most specifically annual reinspections in exchange for customers' annual renewal payments; and

c. [Through] its alleged deceptive and unfair trade practices, Orkin, again at the control and direction of Rollins, is alleged to have disseminated to [the Appellees] and the Orkin Termite Class standardized advertising brochures used by its sales representatives that are alleged to contain false and non-factual statements in violation of Florida law.

Based on this wide-ranging dispute, the Appellees' complaint asserted six claims against the Appellants: deceptive and unfair trade practices (count I); misleading advertising (count II); Florida RICO-criminal racketeering (count III); breach of contract (count IV); unjust enrichment (count V); and declaratory and injunctive relief relating to the validity of the disclaimers in the Contract under section 482.227, Florida Statutes (count VI).

In their complaint, the Appellees sought two distinct types of damages: (1) actual damages for the payments made to Orkin for the initial treatment fee and the annual renewal fees by the Appellees and the putative class members and (2) property damages incurred by the Appellees and the putative class members as a result of damage to their residences caused by subterranean termites. It is important to note that membership in the proposed class was not limited to customers who sustained damage to their residences as a result of an infestation of subterranean termites. For members of the putative class who had sustained no such damage, the recovery of damages — if any — would be limited to the first category of damages sought.

II. THE CLASS CERTIFICATION ORDER

This is the second appearance of this matter before this court on the issue of class certification. We reversed an earlier order granting class certification and remanded for further proceedings because the order did not contain the factual and legal findings required by rule 1.220(d)(1). Rollins, Inc. v. Butland, 852 So.2d 895 (Fla. 2d DCA 2003). On remand, the circuit court conducted a three-day hearing on the class certification issue. After the hearing, the circuit court entered the class certification order under review and a separate case management order. The class certification order is 58 pages long and contains over 245 paragraphs with findings of fact and conclusions of law. The current findings of fact and conclusions of law are sufficient to comply with the requirements of the rule.

In the order under review, the circuit court certified an "Orkin Termite Class" and an "Orkin RICO Subclass." The Orkin Termite Class is defined as "all Orkin customers who either entered into a lifetime renewable subterranean termite contract (without an arbitration provision), referenced herein as the `Standard Termite Contract' or renewed that contract after March 9, 1995[,] through the present." The Orkin RICO Subclass is defined as "all Orkin customers who are members of the `Orkin Termite Class' defined above, and were induced to and entered into a Standard Termite Contract based on Orkin's misleading advertisements and representations that violate Florida Statutes, sections 772.104, 817.06, and 817.41."² The circuit court certified both the Orkin Termite Class and the Orkin RICO Subclass under rule 1.220(b)(2) and (b)(3). The certification order directed class counsel to submit a proposed class notice for the circuit court's approval within thirty days. The parties estimated the number of members of the putative class at 65,000.

III. THE APPELLANTS' ARGUMENTS

The Appellants challenge the class certification order on four grounds. First, because individual issues predominate over common issues, the putative class litigation is unmanageable and does not meet the criteria for class certification under rule 1.220(b)(3). Second, the named class representatives are inadequate to represent the class because their claims are time-barred and because they have divergent interests from other members of the putative class. Third, the case management order violates the Appellants' right to a jury trial. Fourth, the circuit court abused its discretion by certifying classes under rule 1.220(b)(2) that are seeking money damages. We need address only the first and fourth grounds.

IV. THE REQUIREMENTS FOR CLASS CERTIFICATION

Before a class action can be certified, the trial court must conduct a rigorous analysis to determine that the elements of rule 1.220, the class action rule, have been met. See Ortiz v. Ford Motor Co., 909 So.2d 479, 480 (Fla. 3d DCA 2005). First, the trial court must conclude that a plaintiff has established the prerequisites to class representation described in rule 1.220(a). Under rule 1.220(a), the threshold requirements for class action representation are that (1) the members of the class are so numerous that separate joinder of each member is impracticable, (2) the claim raises questions of law or fact common to each member of the class, (3) the claim of the representative party is typical of the claim of each member of the class, and (4) the representative party can fairly and adequately protect and represent the interests of other members of the class. Id. "These requirements are commonly referred to as the numerosity, commonality, typicality, and adequacy of representation elements of class certification." Marco Island Civic Ass'n v. Mazzini, 805 So.2d 928, 930 (Fla. 2d DCA 2001).

In addition to satisfying rule 1.220(a), a plaintiff must also satisfy one of the three subdivisions of rule 1.220(b). The subdivisions relevant to this case are contained in subsections (b)(2) and (b)(3). Rule 1.220(b)(2) requires that the party opposing the class has acted or refused to act on grounds applicable to all class members, thereby making final injunctive or declaratory relief appropriate. Rule 1.220(b)(3) requires that common questions of law or fact predominate over any individual questions of the separate members and the class action must be superior to other available methods for a fair and efficient adjudication of the controversy. The rule 1.220(b)(3) requirement parallels the commonality requirement under rule 1.220(a) because both require that common questions exist, but the predominance...